Citation Nr: 1307614
Decision Date: 03/07/13 Archive Date: 03/11/13
DOCKET NO. 10-43 749 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUE
Whether new and material evidence has been received to reopen a claim for service connection for schizophrenia.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
H.J. Baucom, Associate Counsel
INTRODUCTION
The Veteran had active service from February 1979 to August 1980.
This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas, which denied reopening claim for service connection for schizophrenia finding that new and material evidence had not been submitted.
Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim of service connection for schizophrenia. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
In October 2012 a videoconference hearing was held before the undersigned; the transcript is of record. Additional evidence was received at the RO on the date of the Board hearing without waiver of agency of jurisdiction (AOJ) however a waiver is not needed as the additional evidence consists of VA medical treatment records, which were already constructively in VA's possession, and copies of documents already part of the claims file.
The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.
FINDINGS OF FACT
1. In August 2005 Board denied service connection for schizophrenia. The decision is final.
2. Evidence submitted since the Board's August 2005 decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for schizophrenia.
CONCLUSIONS OF LAW
1. The August 2005 Board decision that denied entitlement to service connection for schizophrenia is final. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 20.1100(a), 20.1104 (2012).
2. The criteria for reopening the claim for service connection for schizophrenia are not met. 38 U.S.C.A. §§ 5108 , 7104(b) (West 2002); 38 C.F.R. § 3.156 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In an August 2005 decision the Board denied service connection for schizophrenia, finding that the there were no manifestations of schizophrenia in service, no diagnosis of schizophrenia in service and no continuity of symptomatology of schizophrenia since service. The decision is now final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.160(d) (2012).
Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108 .
The regulations define 'new' evidence as existing evidence not previously submitted to agency decisionmakers. 'Material' evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id.
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118.
When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992).
Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996).
The Veteran contends that his schizophrenia began in service and has continued ever since.
In reaching a determination on whether the claim should be reopened, the reason for the prior denial should be considered. At the time of the prior denial in August 2005 the Board found that that there were no manifestations of schizophrenia in service, no diagnosis of schizophrenia in service and no continuity of symptomatology of schizophrenia since service.
Evidence received since the prior denial consists of VA medical records, a medical certification by a VA physician for emergency detention, and a May 1980 certificate of psychiatric evaluation.
The May 1980 certificate is duplicative as it was already of record and considered in the prior Board decision (not "new") .
The VA medical treatment records are cumulative. While they demonstrate recent treatment for mental health and substance abuse issues, including schizophrenia, evidence of current treatment was already of record and considered in the prior Board decision. The emergency detention in September 2011 was due to the Veteran being off his medication and threatening suicide and the safety of others. The physician diagnosed schizoaffective disorder, and chronic mental illness with limited social support. While the evidence demonstrates a worsening of the Veteran's condition, this does not make the evidence new and material evidence to reopen the claim for service connection for schizophrenia related to service. It does not suggest that schizophrenia was diagnosed or manifested during service, or has been continuously treated since service.
The Veteran's statement that his schizophrenia began in service is cumulative of prior statements and was previously addressed. The issue in this case is the medical question of whether schizophrenia, or manifestations thereof, began in service and continued since. The Veteran's lay statements as to a medical causation opinion cannot constitute new and material evidence.
New and material evidence has not been received since the August 2005 Board decision and reopening the claim for service connection for schizophrenia is not warranted. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156.
Notice and Assistance
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).
A May 2009 VCAA letter was sent to the Veteran but was amended with a September 2009 letter which satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
In the context of an application to reopen, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). In the September 2009 letter the RO misidentified the date of the most recent prior final denial. The RO indicated that the most recent prior final denial was a November 2011 rating decision which reopened and denied the claim on the merits. However, that rating decision was appealed to the Board. In February 2004 the Board reopened the claim and in an August 2005 decision the Board denied the claim on the merits. The Veteran was not prejudiced by this misidentification as both the November 2011 rating decision and the August 2005 Board decision were decided on the merits with the same basis for the denial. Although the notice letter misidentified the date of the most recent final denial, the reasons for the denial were accurately identified. Specifically the RO informed the Veteran that the claim was previously denied because there was no diagnosis in service, no evidence of treatment for schizophrenia in service, and the first diagnosis of acute psychosis was 17 years after service. The August 2005 Board decision denied the claim as there was no manifestations of schizophrenia in service, no diagnosis of schizophrenia in service and no continuity of symptomatology of schizophrenia. In a June 2009 statement the Veteran reported that he was submitting new and material evidence showing treatment for schizophrenia for which he had been receiving treatment at the VA since 1980, the year he exited service, demonstrating that he was aware of the requirements for new and material evidence. Furthermore, the November 2009 rating decision on appeal discussed the August 2005 Board decision and the basis for the denial.
The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. In October 2012 the Veteran submitted all recent treatment records from the VA Medical Center in Houston, Texas. The Board has reviewed the Veteran's "Virtual VA" file as well.
The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in July 2004. 38 C.F.R. § 3.159 (c)(2).
A VA examination was not conducted as one was not required. In the absence of new and material evidence, VA is not required to provide an examination to a claimant attempting to reopen a previously disallowed claim. Paralyzed Veterans of Am. v. Sec 'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003); Woehlaert v. Nicholson, 21 Vet.App. 456, 463 (2007). 38 U.S.C.A. §§ 5103A(f), 5108; 38 C.F.R. § 3.159(c)(4)(iii).
There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).
ORDER
The petition to reopen a claim for service connection for schizophrenia is denied.
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JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs